States mull violence studies, even sin tax on games

But such efforts will have tough time surviving constitutional challenge

In the two months since the Newtown, Conn., shootings, more than a dozen bills have been introduced at the state level to address violence in the media, with most of the proposals focused on videogames, but once again doubts have been raised that some of the more restrictive measures would ever survive a constitutional challenge.

Proposed legislation includes bills in New Jersey, Pennsylvania and Massachusetts to study videogames and the causes of violence; a New York bill to bar the sale of violent videogames to minors; and a Connecticut bill to impose a 10% tax on M-rated videogames.

Yet even as parents orgs, lawmakers and President Obama have singled out the videogame industry, along with the National Rifle Assn., the industry is prepared to challenge any restrictions enacted on First Amendment grounds, given the rather broad Supreme Court majority opinion in 2011 that struck down a California law barring the sale of violent videogames to minors.

With that decision in mind, some lawmakers are crafting legislation that they hope will somehow survive judicial scrutiny.

In Connecticut, Rep. Debralee Hovey, a Republican whose district includes Newtown, last week introduced the bill that taxes the M-rated games, a proposal she says is modeled after other types of “sin” taxes.

A sin tax on M-rated videogames “will cause people to think about what they are actually purchasing,” she told NBC News.

Her bill would funnel the tax money to the state’s Dept. of Mental Health and Addiction Services, which would develop public service announcements and other informational materials “to educate families on the warning signs of videogame addiction and antisocial behavior.” Shooter Adam Lanza was said to be an avid player of videogames, including the hit title “Call of Duty,” in some initial media reports after the Newtown tragedy, but those details were never officially confirmed.

Her legislation seemingly tries to overcome the problem of the government deeming what’s too violent and what isn’t by placing such distinctions in the hands of the industry’s self-regulating Entertainment Software Rating Board, which is a guide for retailers and parents. A similar piece of legislation was proposed in Missouri, with a 1% tax on games rated Teen, Mature and Adults Only and the proceeds going to mental health programs and law enforcement.

Such proposals would nevertheless have trouble surviving a court challenge: Previous efforts to essentially “outsource” the decision about what is taxed and what isn’t have been found to be constitutionally suspect, said David Horowitz, executive director of the Media Coalition, which represents videogame retailers, booksellers, record and movie producers in free speech challenges. “The government is giving the job of deciding who should be taxed to a nongovernmental agency,” he said. “They basically can’t outsource those decision.”

He added that the more the legislation focuses on one type of media and one type of viewpoint, the more it will be viewed as “particularly suspect” to free speech concerns.

The prospect of a court challenge doesn’t always stop lawmakers from enacting legislation, particularly after past mass shootings. But in the wake of the Supreme Court videogame decision, there seems to be more mindfulness that options are limited.

Steve Hogan, the mayor of Aurora, Colo., the site of a mass shooting at a multiplex last summer, suggested banning the sale of violent videogames or imposing some kind of tax, but he backed off the idea after the city attorney said that such measures would likely not survive constitutional challenges.

Adam J. Keigwin, chief of staff to California state Sen. Leland Yee, a Democrat who authored the state’s 2005 videogame law, said that they did not tie their legislation to the ESRB ratings because “previous rulings that the government can’t rely upon a private entity’s ratings in deciding how to regulate.” Moreover, he said, they had concerns that the rating system itself was “inherently flawed,” with games rated “inappropriately,” so “we tried to create our own definition.”

Since then, however, Yee has not sought to recraft his legislation, mindful of the reality of the court 7-2 decision, and has focused instead on public service announcements for parents and other educational measures.

Although Keigwin said that they were very confident of the scientific correlation between videogame violence and real-life aggression, Justice Antonin Scalia actually mocked some of the research that had been done in his majority decision.

Most likely to get passed are proposals that seek to resolve the conflicting claims about the effect of media violence. Some of the state proposals to study the effects of videogame violence bear similarities to ideas advanced by President Obama, who proposed a $10 million Centers for Disease Control study yet stopped short of taking further action to regulate media violence. Sen. Jay Rockefeller (D-W. Va.), the chairman of the Senate Commerce Committee, also has proposed a study, to be conducted by the National Academy of Sciences.

The videogame industry has defended its ratings system and has pointed to research showing no link between virtual and real-life violence, but “we certainly view it that more information and better information is always beneficial,” Horowitz said.

The concern, he said, is that impartiality be maintained; some of the legislation being proposed “seems to point to a conclusion prior to the research being conducted.” He said that the Media Coalition sent a letter to Massachusetts lawmakers expressing concerns about a proposal to create commission that will study videogame violence because the plan also calls for also examining “policy options.”

The constitutional limitations on lawmakers, though, do not extend to the bully pulpit. In New Jersey, Assemblywoman Alison Littell McHose, a Republican, last month introduced a measure aimed at media profiteering from violence. Her bill “urges all responsible television and film celebrities, together with all entertainment and media corporations, to publicly pledge to refrain from appearing in, promoting or profiting from entertainment products that depict the violent use of handguns, semi-automatic weapons, or ‘assault weapon’ style rifles.”